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[2016] ZAECMHC 32
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N.T v M.R and Another (1817/2016) [2016] ZAECMHC 32 (21 June 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO: 1817/2016
In
the matter between:
N.
T.
Applicant
and
M.
R.
First
Respondent
HARMONY
GOLD MINING COMPANY LIMITED
Second
Respondent
REASONS
FOR ORDER POSTPONING THE APPLICATION ON 17 JUNE 2016
MBENENGE
J:
[1]
I was approached in chambers by the parties’ legal
representatives in this matter in the morning of Tuesday 14 June
2016;
having not been certain as to whether he had previously
appeared before me, Mr Nombambela, the applicant’s erstwhile
attorney,
in the company of Mr Hobbs, counsel for the first
respondent, attendant upon chambers to introduce himself.
Notwithstanding
the fact that the first respondent’s heads of
argument had not been filed of record, the parties’ legal
representatives
indicated that they were nevertheless ready to argue
the matter. I urged them to explore ways and means of settling
the matter,
in view of its sensitive nature, with the potential to
create acrimony between blood relatives – a dispute between
biological
parents for the burial of their deceased son. A
pledge was thereupon made that settlement talks would be engaged in
on the
following morning, and failing such settlement, the matter
would be argued. The
rule nisi
was accordingly extended
to Wednesday 15 June 2016, principally to enable the parties to find
one another.
[2]
When the matter served before me on the extended return day (15 June
2016), I was advised, from the bar, that settlement talks
had been
held, but that no settlement had been reached. I entertained
some hope that the parties might still find one another,
especially
that there was a common denominator between them – the mother
of some of the deceased’s minor children who,
despite not being
a party to the proceedings, had deposed to an affidavit delivered
simultaneously with the first respondent’s
answering
affidavit. I thought that her views had the potential of
bringing the contestants together. The parties’
legal
representatives gave heed to my proposal, after the lady concerned
had confirmed being the mother of some of the deceased’s
minor
children and expressed her preferences concerning the burial venue,
albeit informally. That course, too, yielded naught.
[3]
The parties’ legal representatives thereupon braced themselves
up for argument. During such argument and at a point
when I was
debating issues with Mr Nombambela, he expressed concern that
the first respondent had not delivered heads of argument
in the
matter, which he believed disadvantaged his client. I called
upon Mr Hobbs to place on record, for the benefit of
Mr Nombambela,
the contentions he intended raising in pursuit of the opposition to
the application, which he did after stating
that he would adopt an
approach different from that taken by his instructing attorney in the
heads of argument that appear to have
been previously served on the
applicant’s then attorneys. Mr Nombambela thereupon
somewhat grudgingly proceeded to
present argument.
[4]
Considering myself not being a mere passive umpire,
[1]
and in light of the trite legal position in matters of this
nature,
[2]
I called upon Mr
Nombambela to first deal with the question of whether any
instructions had been given by the deceased in relation
to where he
(the deceased) should be buried. I was of the view that, if
that question were to be answered in favour of Mr
Nombambela’s
client it would not be necessary to proceed to the next enquiry and
determine who the deceased’s heirs,
entitled to decide on
where and when the burial should take place, are. It is in the
course of the debate that ensued when
Mr Nombambela was hard put to
point to the alleged wishes in the papers that he became visibly
agitated and sought a stand down
of the matter to enable him to take
instructions, which was granted. On resumption of the hearing,
Mr Nombambela advised
the court that a rift had since developed
between him and his client regarding the future conduct of the case,
with the result
that he no longer held instructions to represent the
applicant and was accordingly withdrawing as attorney of record.
This
resulted in the matter being postponed to enable the applicant
to secure the services of another attorney. The
rule
nisi
was further extended to Friday, 17 June 2016.
[5]
On the further extended return day, Friday, 17 June 2016, the
applicant appeared in person stating that she had not been successful
in her quest to secure the services of an attorney, and hoped to
achieve that today (Monday 20 June 2016), hence she applied for
a
further postponement of the matter. Mr Hobbs, correctly so in
my view, did not oppose the postponement application.
He
undertook to request his instructing attorney to avail the entire set
of application papers for the take- over attorney of record,
for the
sake of expediency.
[6]
Against this background, the
rule
nisi
was further extended and the matter postponed to Thursday, 23 June
2016, for hearing as an opposed application.
_________________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
For
the Applicant
: In
Person
Counsel
for the 1
st
Respondent
: Mr
Hobbs
Instructed
by
MESSRS TSIPA ATTORNEYS
BUTTERWORTH
C/O
CAPS PANGWA & ASSOCIATES
MTHATHA
Date
heard
: 17 June 2016
Date
order granted
: 17 June
2016
Date
reasons for order handed down: 21
June 2016
[1]
In
Jones
v National Coal Board
[1957] EWCA Civ 3
;
[1957] 2 All ER 155
(CA) at 158 Lord Denning had the following to
say: “…
a
Judge is not a mere umpire to answer the question ‘How’s
that?’”
.
See also
Leepile
v S
2016 (1) SACR 513
(NWM) at para [18];
B
v B
[2011] ZAWCHC 71
at para
[18]
Smith
v S
[2013] ZASCA 38
(28 March 2013) at paras [15] – [17] and
S
v Basson
2005 (12) BCLR 1192
(CC);
2007 (3) SA 582
(CC) at para [33].
[2]
In the
absence of instructions, expressed verbally or in writing, as to who
should bury the deceased, the deceased’s heirs,
in their order
of seniority, are the persons entitled to decide on where and when
the burial should take place. See
Gonsalves
v Gonsalves
,
1985 (3) SA 507
(T);
Mankahla
v Matiwane
1989 (2) SA 920
(Ck);
Khumalo
v Khumalo
,
1984 (2) SA 229
(D);
Sekeleni
v Sekeleni ,
1986 (2) SA 176
(TkS);
Mabulu
v Thys
,
1993 (4) SA 701
(SE) and
Nxumalo
v Mavundla
2000 (4) SA 349
(D).